Court Denies Government's Request for a Stay of Order on Two-Pill Product

Today, the U.S. Court of Appeals for the Second Circuit ordered the Obama administration’s Food and Drug Administration to comply with U.S. District Court Judge Edward Korman’s Order to make to make two-pill versions of emergency contraception available over-the-counter without a prescription, age requirements or other restrictions on how it is sold. The government had sought a stay of Judge Korman’s Order from the Court of Appeals for the Second Circuit.

“This decision affirms that the unnecessary restrictions that have been imposed by the FDA were never supported by scientific evidence,” said Andrea Costello, Senior Staff Attorney for the Partnership for Civil Justice Fund and lead attorney for the National Women’s Liberation Plaintiffs. “This decision throws a wrench in the delay tactics of the Obama administration, which has continued to stall putting the Morning-After Pill over-the-counter by subjecting the FDA’s decision making to politics at women’s expense.”

“This is a watershed moment in the fight for reproductive rights in the United States,” stated attorney Mara Verheyden-Hilliard, Executive Director of the Partnership for Civil Justice Fund. “For the first time women and girls will be able to have full access to emergency contraception without the government imposing improper and illegal barriers.”

"Women all over the country have been fighting for years to put the Morning-After Pill on the shelf where it belongs,” said Erin Mahoney, Plaintiff with National Women’s Liberation. “It is a great victory today that the court agreed that it belongs over-the-counter without restriction. We are going to keep fighting in opposition to any effort by the Obama administration to overturn this important victory.”

The Partnership for Civil Justice Fund (PCJF) represents the plaintiffs, grassroots feminist activists with National Women’s Liberation (NWL) and 15-year-old Anaya Kelly in Tummino v. Hamburg. The lawsuit was filed along with the Center for Reproductive Rights and Southern Legal Counsel against the Food and Drug Administration and Health and Human Services.

On April 5, the Court ruled in the plaintiffs' favor that there was no scientific basis for the Obama administration to continue to restrict access to emergency contraception. Judge Korman ordered that it be made available to women and girls "without a prescription and without point-of-sale or age restrictions within thirty days." The Court found that the FDA had improperly restricted this safe and effective contraceptive after election-year "political interference" from the White House, and had done so against the medical and scientific evidence recommending the drug be made readily available.

Instead of complying with the Court's Order, the government is pursuing an appeal that seeks to continue to impose scientifically unjustified restrictions on access to emergency contraception. The Obama administration filed its appeal one day after it announced a “sweetheart” arrangement with the manufacturer of the one-pill emergency contraceptive drug that would force all women and girls to present government-issued ID to store clerks in order to obtain emergency contraceptives and that would continue to deprive over-the-counter access to young teenagers. In its Opinion, the District Court called this agreement an effort to "sugarcoat" the appeal that the Obama administration filed the next day, May 1st.